How reverse-CPRA lawsuits harm the public’s right to know

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Instead of receiving responses to their requests for government records under the California Public Records Act, some journalists and news outlets have been served with lawsuits seeking to keep records private. This disturbing trend — known as reverse-CPRA-lawsuits — is intended to discourage the press and public from seeking records that could shed light on government activities.

A journalist or news outlet that files a request for public records under the CPRA is typically only drawn into litigation if they decide to sue a government agency that has not responded to or has denied their public records request. However in a reverse-CPRA case, a third party — often the subject of the records — sues the government agency that possesses the records, and at times the records requester, in an effort to preemptively prevent the release of information.

A number of government agencies have also used these lawsuits themselves in an attempt to avoid disclosing records by devising litigation strategies to block the release in court. As part of this, some government agencies have delayed record disclosures in hopes of giving third parties the opportunities to sue and stop the release of records. (Under the CPRA, public agencies are not required to notify third parties that their information will be disclosed.)

The resulting litigation can last for months or years, and it forces journalists and news outlets to incur costly attorney’s fees to fight for the release of public records that they had a right to access in the first place.

Jim Ewert, legal counsel for the California News Publishers Association, said these reverse-CPRA lawsuits do more harm than good because they create a delay in the disclosure of timely information.

“[These lawsuits] can be very harmful to the public’s right to know,” Ewert said. “If it takes too long to get the information, it becomes stale. It’s no longer in the news cycle.”

In addition, reverse-CPRA lawsuits can impose burdensome attorney’s fees on records requesters. Under the CPRA, those who win a suit against a government agency for violating the act are entitled to recover attorney’s fees. The award of attorney’s fees to a requester who wins a CPRA lawsuit requester is mandatory. However, some California courts have refused to award fees to requesters who win a reverse-CPRA lawsuit, under old statutory language that only allowed for the award of attorney’s fees to the prevailing “plaintiff.”

Reporters Committee staff attorney Caitlin Vogus said the previous use of the term “plaintiff” in the CPRA fee provision limited the scope of who the statute applied to.

“Some courts used that as justification for the reason that a requester couldn’t get attorneys fees in a reverse-CPRA lawsuit even if [they] won, because the requester is not the plaintiff in a reverse-CPRA lawsuit, the person trying to block release of the records is,” Vogus said. “So that change in the law could mean that requesters are more likely to get their fees when they win reverse-CPRA lawsuits.”

Last year, the language of the provision in the CPRA that provides for attorneys’ fees was changed to entitle a prevailing “requester” to fee recovery instead of a prevailing “plaintiff” as it was worded before. This change may allow requesters who win reverse-CPRA lawsuits to recover their attorney’s fees in the future.

A typical reverse-CPRA lawsuit arises as follows: When an agency receives a records request from a person/group seeking access to certain documents, they can (and sometimes do) notify a third party — usually the subject of these records — about the request. (Note: There’s nothing in the law that requires the agency to notify the requester of this action, meaning the requester may not be aware of the upcoming lawsuit.) Once the third party is notified, they file a reverse-CPRA lawsuit seeking to block the release of their records.

In recent years, Ewert said he’s noticed a growing number of reverse-CPRA lawsuits from groups hoping to prevent the release of certain records, but the most prominent group to do so seems to be members of law enforcement.

“This process has been abused by unions primarily to thwart a requester [they believe] could harm its members.” Ewert said. “It harms the public’s ability to hold government officials accountable.”

Along similar lines, Vogus said reverse-CPRA actions limit the public’s ability to obtain information by preventing access. Although public agencies are not permitted to sue for a declaration that they do not have to release records under the CPRA, they can make an end-run around this prohibition by informing a third-party of a records request, enabling that third-party to bring a reverse-CPRA lawsuit.

The Reporters Committee has provided legal representation and amicus curiae support to a number of journalists and news outlets facing such lawsuits. A list of those cases, as well as other significant reverse-CPRA cases, is below. If you know of any reverse-CPRA cases that are not on the list below, let us know.

Involvement

Los Angeles v. Metropolitan Water District of Southern California, San Diego Union-Tribune

Update: This section has been updated to include correct information about the number of participants in the Turf Program, the ongoing appeals in this case and Metropolitan Water District of Southern California’s involvement.

After the San Diego Union-Tribune submitted a public records request to the Metropolitan Water District of Southern California (MWD) related to its Turf Program, the Los Angeles Department of Water and Power (DWP) filed a reverse-CPRA lawsuit against MWD in 2015 to prevent the release of the unredacted records. The Turf Program was created after Governor Jerry Brown issued an executive order declaring California in a state of drought and requiring 50 million square feet of lawn and ornamental turf to be replaced with drought-tolerant landscapes. The program had more than 60,000 participants from across Southern California who were provided with rebates. The total fund of $450 million was exhausted in July 2015.

The Union-Tribune sought records from MWD related to the program’s participants, 20 percent of whom were DWP customers. In response, DWP sued MWD to prevent the release of unredacted records, citing its customers’ privacy rights. The Union-Tribune intervened in DWP’s lawsuit against MWD to argue for disclosure of all responsive records.

The trial court ultimately determined that the unredacted records should be released. It also awarded the Union-Tribune part of its attorney’s fees incurred in this case, apportioning payment of the fees among DWP, MWD, and other water districts that had also intervened.

The media coalition argues that reverse-CPRA cases post-Marken have “chipped away” at the CPRA’s effectiveness as a tool for government oversight and “discourages members of the public from making CPRA requests in the first place.”

Among other things, reverse-CPRA lawsuits run contrary to the CPRAs prohibition against agencies “delaying access to public records requested under the Act,” and, despite the fact that the CPRA explicitly indicates that requesters who prevail in public records litigation are entitled to“mandatory awards of reasonable attorneys’ fees,” there has been confusion about the availability of such attorney fees awards in reverse-CPRA lawsuits.

Finally, government agencies cannot be expected to defend the public’s right of access to government records under CPRA, the brief asserts, as that idea “disregards this history of government officials withholding records for self-interested reasons.”

When the Los Angeles Times filed a CPRA request in 2014 for a report regarding an officer-involved shooting that killed an unarmed teenager, the Pasadena Police Officers Association sued the City of Pasadena and the news outlet to prevent the report’s release. The district court judge presiding over the case determined that the report was of public interest and ordered the city to release a copy of it with confidential personnel information redacted. PPOA appealed the decision, and the Reporters Committee and 14 other media organizations submitted a friend-of-the-court brief in support of the LA Times, highlighting the negative impacts of reverse-CPRA lawsuits and emphasizing that they contradict the CPRA’s fundamental intent: to provide public access to government records.

“Reverse-CPRA actions, like this one, turn the public’s presumptive right to access records of government agencies on its head and upset the careful balance of incentives and protections established by the Legislature to ensure meaningful public access to government information,” Reporters Committee attorneys stated in the brief.

A California appeals court upheld the district court’s ruling, expanding the scope of the information from the report to be released, and ordered the trial court to award the LA Times attorney’s fees.

National Conference of Black Mayors v. Chico Community Publishing

Sacramento Mayor Kevin Johnson and the National Conference of Black Mayors filed a reverse-CPRA lawsuit against the City of Sacramento in 2015 after the Sacramento News & Review (which is owned by Chico Community Publishing) filed a request for records related to Johnson’s use of public resources in his work as president of NCBM. SN&R won the lawsuit, and the court ordered the release of hundreds of pages of records, which revealed that Johnson and his staff used city resources in his takeover and eventual bankruptcy of NCBM.

A district court, however, denied SN&R’s request to recover attorney’s fees. The news outlet appealed the decision, and in January 2018, the Reporters Committee and 14 media organizations submitted a friend-of-the-court brief to the appeals court arguing that California law does not permit reverse-CPRA action and that the court should award fees to discourage public agencies from aligning with third-party groups to bring these preemptive lawsuits that limit disclosure of public records and reduce transparency. The appeals court ruled against SN&R, and the news outlet sought a final appeal to the California Supreme Court. The California Supreme Court declined the request to review the case.

Other notable reverse-CPRA cases

Los Cerritos Community Newspaper Group v. Water Replenishment District

After the Los Cerritos Community Newspaper Group sued the Water Replenishment District in 2015 to compel release of records related to a settlement agreement between WRD and attorney John W. Harris of Harris and Associates, Harris petitioned to prevent release of the records. The settlement agreement was negotiated after a former Harris and Associates employee produced documents in 2014 showing that Harris fraudulently overbilled WRD by nearly $2 million in less than two years. Kelly Aviles, the attorney representing Los Cerritos said the public was entitled to this information.

“You can’t make a settlement with a public agency confidential,” Aviles said.

Aviles noted that in most reverse-CPRA lawsuits, the agency agrees to produce the records, then the reverse-CPRA plaintiff files a lawsuit to stop the release. But in the case of Los Cerritos Community Newspaper v. WRD, the agency said they wouldn’t disclose the records and filed the lawsuit themselves. Although the judge didn’t deal with the procedural issues of this matter, the court ruled in favor of Los Cerritos Community Newspaper Group and ordered WRD to produce complete copies of the settlement agreement, which detailed Harris’ egregious acts of fraud against WRD. The Los Cerritos Community Newspaper Group successfully recovered attorney’s fees, and the Water Replenishment District paid and turned over all settlement records.

Political blog FlashReport filed a CPRA request in January 2016 for documents related to salary negotiations between Orange County and the Association of Orange County Deputy Sheriffs. AOCDS counteracted with a reverse-CPRA lawsuit and requested a temporary restraining order on the release of the documents. The judge dismissed the suit, stating that the public would be deprived of their “right to see” if the order was approved. Once released, the records showed that the deputies union had asked for a 12 percent salary increase in July 2015 and another 6 percent raise in November 2015.

Though the records were released, FlashReport failed to recover attorney’s fees because the judge ruled the blog didn’t need to involve itself in the lawsuit since the County was advocating for the release of records.

Tom Williams v. City of Milpitas, First Amendment Coalition

Former Milpitas City Manager Tom Williams filed a reverse-CPRA lawsuit in April 2017 after the city received multiple CPRA requests for documents related to allegations of his misconduct. After a judge granted a temporary restraining order blocking release of the requested records, the First Amendment Coalition filed a CPRA lawsuit seeking to force disclosure of the records.

The judge who oversaw FAC’s CPRA lawsuit vacated the temporary restraining order in strong support for transparency and the public’s right to know. In the ruling, the judge wrote that “the public has a significant interest in learning how city employees spend (or misspend) taxpayer money. It also has a significant interest in understanding the city’s response to allegations that high-ranking city officials may have committed misconduct. These interests, in my view, outweigh Mr. Williams’s privacy rights. And disclosure of the requested documents will help satisfy these public interests.”

The records were released and showed that Williams had sustained four misconduct claims, including misusing the city credit card and trying to obtain a purchase order to pay his private attorney.

Public interest organization Jobs to Move America filed a CPRA request with the Los Angeles Metropolitan Transportation Authority in 2016 seeking records related to Canadian-based bus manufacturer New Flyer’s compliance with its commitments to job creation after it struck a $500 million deal with MTA in 2012. In response, New Flyer filed a reverse-CPRA lawsuit to prevent the release of records, citing a need to protect trade secrets. A California superior court judge disagreed, highlighted the public’s interest in disclosure, and ordered the release of the records in October 2017. JMA successfully litigated to recover attorney’s fees of $170,000 in March 2018.

Marken v. Santa Monica-Malibu Unified School District

Ewert cited this case as one of his first observances of reverse CPRA lawsuits. The case involved allegations of inappropriate conduct against a teacher in the Santa Monica-Malibu School District. After receiving a complaint from a student, the school district conducted an investigation into math teacher Ari Marken. The investigation resulted in a report of partial findings of conduct violations, and Marken was issued a written reprimand from the school district.

Two years later, a parent requested disclosure of those records under CPRA. Marken was notified of the school district’s intent to release the records, and filed what would become known as a reverse-CPRA lawsuit by requesting a preliminary injunction to prevent the disclosure of information. The trial court denied this request, but this case became one of the first in a series of growing reverse-CPRA lawsuits.

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